Capital Goods - February 2011

Ifs, ands or butts

By Scott Mooneyham

It would be understandable if Hugh Holliman feels a bit like Barack Obama these days. Like the president, his political career suffered in last fall’s election, though his fate was worse than that of his fellow Democrat. The former majority leader of the N.C. House of Representatives was swept from office by the Republican tide that put the GOP in charge of the statehouse. As is the case with the president, his signature political achievement is under fire. But unlike Obama’s health-care plan, the state’s year-old smoking ban in restaurants and bars probably is safe on the legislative front. The new Republican majority has made no noise about trying to undo the ban, championed by Holliman, a lung-cancer survivor from Lexington. The challenge comes in the courts, from lawsuits brought by bar owners.

A judge has rejected health department citations against the owners of four bars in Greenville, meaning they can pretty much ignore the law for now. The judge said lawmakers’ decision to exempt country clubs, clubs run by fraternal organizations and other types of nonprofit private clubs amounted to unequal protection under the law. Another bar owner in Greensboro has chosen to defy the law while appealing a lower-court ruling that went against him. He’s making a similar claim that the law unfairly targets some businesses while letting others slide.

The court challenges echo the complaints when the law was passed. Critics argued that legislators had waded into an issue of private property rights, that the marketplace and personal choice could sort out whether smoking was permitted or prohibited in bars and restaurants. Their arguments resonated in a state where tobacco had been so critical to the economy. Holliman always maintained that the law wasn’t about those things. “It’s about the rights of all North Carolinians to breathe clean air,” he says. Most residents of the Tar Heel State seem to agree. Last summer, after the law had been in effect several months, polls showed roughly two-thirds of likely voters in the state supported the ban. George Beaman, one of the Greenville bar owners trying to stop the new law, says his business dropped nearly 40% after it took effect. But a lot of other restaurant and bar owners apparently haven’t experienced the same kind of declines. Media reports from across the state quote restaurant and bar owners who say most of their patrons are happy about the change, even if some smokers remain miffed.

It’s worth remembering that Holliman’s bill was defeated twice — in 2005 and 2007 — before passing in 2009. Attitudes may have changed, but North Carolina is still the state where tobacco money built universities and where the tobacco industry was once a major employer. Just five years ago, smokers still lit up in the hallways and atriums in the Legislative Building. The lingering importance of the leaf factored into those earlier defeats, with legislators from eastern counties arguing that the state shouldn’t do anything to damage a legal product that remains a critical cog in the rural economy.

At one point, Rep. Jerry Dockham, a Republican who like Holliman lives in Davidson County, talked of filing a bill to repeal the ban. Even then, he acknowledged that success wasn’t likely. More recently, he and other Republican legislators have said no groundswell exists to revisit the issue. Legislators of both parties see which way the wind, as well as the smoke, is blowing. Even with the power shift, most lawmakers aren’t going to want to buck public sentiment.

The courts, of course, are another matter. In the Greenville case, Superior Court Judge G. Galen Braddy said enforcement was arbitrary, noting that the law set up invalid distinctions. The Pitt County Health Department is appealing the ruling. In Greensboro, bar owner Don Liebes tacked “Country Club” to the name of his Gate City Billiards to try to get around the law. Fighting Guilford County Health Department citations, he initially argued that a country club wasn’t defined by the law. Later, his lawyer argued that the law contained no rational basis to distinguish between private and nonprofit clubs, pointing out that secondhand smoke was the same in either place. Superior Court Judge Jan Samet didn’t buy the arguments, siding with the county and its enforcement officers.

So opponents and proponents, smokers and nonsmokers, end up with contrasting rulings decided largely on the same arguments. Over the next year or so, North Carolina’s appellate courts will sort out whether the lines in the law were drawn in the appropriate places, whether the smoke stops at the doors when it comes to bars and restaurants. A signature political achievement will stand or fall.